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Obligation of States to Adapt Their Domestic Legislation to the Inter-American Standards of Human Rights

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Obligation of States to Adapt Their Domestic Legislation to the Inter-American Standards of Human Rights COMPENDIUM Obligation of States to Adapt Their Domestic Legislation to the Inter-American Standards of Human Rights OEA/Ser.L/V/II. Doc. 11 25 January 2021 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Compendium on the Obligation of States to Adapt Their Domestic Legislation to the Inter-American Standards of Human Rights 2021 iachr.org OAS Cataloging-in Publication Data Inter-American Commission on Human Rights. Compendium on the Obligation of States to adapt their Domestic Legislation to the Inter-American Standards of Human Rights : approved by the Inter-American Commission on Human Rights on January 25, 2021. p. ; cm. (OAS. Official records ; OEA/Ser.L/V/II) ISBN 978-0-8270-7187-2 1. Human rights. 2. Civil rights. I. Title. II. Series. OEA/Ser.L/V/II. Doc.11/21 This document has been develop thanks to the support from the Pan American Development Foundation (PADF) in the framework of the “Regional Human Rights and Democracy Project”, and was made possible by the support of the American People through the United States Agency for International Development (USAID). The contents of this compendium are the sole responsibility of the Inter-American Commission on Human Rights and do not necessarily reflect the views of PADF, USAID or the United States Government. INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Joel Hernández García Antonia Urrejola Flávia Piovesan Esmeralda Arosemena Bernal de Troitiño Margarette May Macaulay Julissa Mantilla Falcón Edgar Stuardo Ralón Orellana Acting Executive Secretary María Claudia Pulido Chief of Staff of the Executive Secretariat of the IACHR Norma Colledani Assistant Executive Secretary for Monitoring, Promotion and Technical Cooperation María Claudia Pulido Assistant Executive Secretary for Cases and Petitions Marisol Blanchard Vera Approved by the Inter-American Commission on Human Rights on January 25, 2021 TABLE OF CONTENTS INTRODUCTION 9 A. Objective 9 B. Methodology 10 C. Structure 11 CHAPTER 1 | THE OBLIGATION OF STATES TO ADAPT THEIR DOMESTIC LEGISLATION TO THE INTER-AMERICAN STANDARDS OF HUMAN RIGHTS 15 A. Background Information 15 B. Basis of the Obligation of States to Adapt their Domestic Legislation to the Inter-American standards of Human Rights 17 C. Scope of Application 20 CHAPTER 2 | DEVELOPMENTS OF THE IACHR ON THE OBLIGATION OF STATES TO ADAPT THEIR DOMESTIC LEGISLATION TO THE HUMAN RIGHTS STANDARDS OF THE INTER-AMERICAN SYSTEM 25 A. Inter-American Human Rights Instruments 25 B. The Obligation to Adapt Domestic Legislation to the American Convention 31 C. The Obligation of every Public Authority 39 D. The Obligation to Adapt Domestic Legislation Exercised Ex Officio 42 E. The obligation to Adapt Domestic Legislation by Subnational Jurisdictions 44 CHAPTER 3 | IMPLEMENTATION OF THE OBLIGATION OF THE STATES TO ADAPT THEIR DOMESTIC LEGISLATION TO THE INTER-AMERICAN STANDARDS OF HUMAN RIGHTS 51 A. With regard to Special Courts for Human Rights Violations 57 B. With Respect to Amnesty Laws and Provisions 59 C. With Regard to Regulations on Death Penalty 67 CHAPTER 4 | CONCLUSIONS 75 REFERENCES AND REPORTS 77 INTRODUCTION Introduction | 9 INTRODUCTION A. Objective 1. The Inter-American Commission on Human Rights (hereinafter the “IACHR”, the “Commission” or the “Inter-American Commission”) is a principal and autonomous body of the Organization of American States (OAS), whose mission is to promote and protect the observance and defense of human rights, and to serve as a consultative body of the OAS in the matter. It fulfills these duties through several mechanisms: visiting countries, drafting reports on the human rights situation in a given country or on a specific thematic issue, adopting precautionary measures or requesting provisional measures from the Inter-American Court of Human Rights (hereinafter the “Inter-American Court” or the “Court”), processing and reviewing petitions through the system of individual cases, and providing States with technical advice and cooperation services. 2. The countries in the region have made significant steps by ratifying the inter- American instruments and by incorporating the human rights standards developed within the framework of the inter-American system of protection and promotion of human rights. However, the need to strengthen the democratic institutions of the States and to reinforce the capabilities to implement public policies with a human rights perspective that can create concrete impacts on the enjoyment and exercise of these rights remains being a challenge in all the countries of the region. 3. For the effectiveness of the inter-American system of human rights, it is required not only that the victims of human rights violations have full access to the mechanisms of defense and protection available at the IACHR and the Inter-American Court, but also that domestic authorities incorporate and duly apply the inter-American standards. In this regard, the obligation to incorporate such standards derives, inter alia, from the preamble to the American Declaration, Article 2 of the American Convention, as well as Articles 26 and 27 of the Vienna Convention on the Law of Treaties and the fundamental principles of the OAS Charter. 4. In this way, States must specify the obligation to guarantee human rights at the domestic level by verifying that their national regulations and practices are aligned with their inter-American obligations in the field of human rights. For the Inter- American Commission, in international law, particularly in the inter-American human rights system, the obligation of States to adapt domestic legislation is based on the human rights conventions and treaties to which they are party. 5. The IACHR, in fulfillment of its mandate to provide advice and technical assistance to States, considers it essential to develop instruments and tools that are useful to 10 | Compendium on the Obligation of States to adapt their Domestic Legislation to the Inter-American Standards of Human Rights both the States and the users of the system, civil society organizations, academia, social movements and the Commission itself. 6. As part of the 2017-2021 Strategic Plan of the IACHR1, Strategic Objective 3 aims at promoting democracy, human dignity, equality, justice and fundamental freedoms based on an active contribution to the strengthening of state institutions and human rights public policies in accordance with the inter-American norms and standards, and to the development of the capacities of social and academic organizations and networks to act in defense of human rights. This compendium on the obligation of States to adapt their domestic regulations to the inter-American standards is one of the actions carried out by the Commission to improve and strengthen the public policies, regulations, practices and initiatives of the countries in the region, so as to improve the protection of fundamental rights. In this regard, this compendium is an updated and easily accessible tool of reference for state actors, civil society and the IACHR’s Executive Secretariat itself on an essential topic for the region. 7. In this compendium, the IACHR gathers and systematizes the relevant extracts from the reports published on the subject through its different mechanisms. It is important to emphasize that this document is not a document of exhaustive historical analysis, but rather systematizes the main standards regarding the most recurrent or relevant themes, without pretending to cover all situations and exceptions. It is also important to note that the quotations from the reports of petitions and cases, thematic or country reports, do not necessarily reflect the legal situation of the case cited with respect to the responsibility of the State concerned. With this compendium, the Commission intends to provide a tool for strengthening the capacities of State agents, civil society and other relevant sectors such as the academia and social movements at both the local level and at the level of the inter- American system, to disseminate the standards and recommendations of the IACHR regarding the obligation of States to adapt their domestic legislation and thereby contribute to the incorporation of inter-American human rights law in the regulations, practices and public policies of the region. B. Methodology 8. The present compendium was prepared by reviewing, systematizing and analyzing the standards developed by the IACHR regarding the obligation of States to adapt their domestic legislation to inter-American standards of human rights. In this regard, the compendium draws upon the historical work done by the Commission while fulfilling its mandate through the incorporation of certain relevant extracts developed by the Commission. 9. In relation to the sources of information, this compendium included a review of the materials prepared and published by the IACHR. In particular, thematic and country reports were examined, together with substantive decisions made on cases 1 IACHR. Strategic Plan 2017/2021. OAS/Ser.L/V/II.161 Doc. 27/17. Organization of American States | OAS Introduction | 11 submitted to the inter-American protection system, including reports published by the IACHR pursuant to Article 51 of the American Convention on Human Rights (hereinafter ACHR) and reports on cases submitted to the Inter-American Court pursuant to Article 61 of the ACHR and Article 45 of the IACHR’s Rules of Procedure. The annual reports published by the IACHR in accordance with Article 59 of the Rules of Procedure were also reviewed. 10. In order to present an updated and thorough instrument, the compendium was prepared by reviewing reports published by the IACHR. During the review of the reports, those standards deemed relevant were systematized, and relevant extracts were collected for each section depending on their source and scope. Although the systematized information is not fully comprehensive, the examples cited are those that have been considered most relevant for the stated purpose of this compendium, and therefore additional citations are included to expand the information collected in this field. C. Structure 11. This compendium is made up of three chapters, which present the most relevant standards in this field.
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